STATE OF NEW JERSEY VS. NOEL R. SURUY(11-12-1016, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5057-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NOEL R. SURUY,
a/k/a NOE R. SURY,

Defendant-Appellant.

______________________________

Submitted May 9, 2017 – Decided July 6, 2017

Before Judges Ostrer and Leone.

On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
11-12-1016.

Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Robert J. Wisse,
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM

Defendant Noel R. Suruy, who pled guilty to four counts of

second-degree aggravated assault, appeals the June 2, 2015 order
denying his petition for post-conviction relief (PCR) without an

evidentiary hearing. We affirm.

I.

Defendant testified to the following facts at his July 23,

2013 plea colloquy. Around 4:00 a.m. on August 14, 2011, defendant

attacked and severely injured four people with a machete in and

near the home of his ex-girlfriend, Y.R.1 Y.R.'s thirteen-year-

old daughter, eleven-year-old son, and a man in his early twenties

were in the home. Defendant entered and asked the daughter where

Y.R. was. When the daughter said she did not know, defendant

became angry, got his machete from inside the home, and attacked

her several times, causing lacerations on the back and side of her

head, the back of her ear, and her lip and chin area, as well as

injuries to her arms, her shoulder, and her finger. When the man

in the home tried to defend the daughter, defendant hit him with

the machete, swinging at his head to cause a serious injury but

lacerating his arm. Y.R.'s son escaped unharmed.

Defendant left the home and found Y.R. and another man

outside. Defendant believed this man was Y.R.'s paramour and

proceeded to attack them both with the machete many times.

Defendant intended to cause life-threatening injuries to both, but

1
We use initials to protect the identity of the victim.

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they both put up their arms to defend themselves. Y.R. suffered

two large open wounds and a broken arm which required permanent

plates and screws. Her companion received injuries on both of his

hands, his left arm, his left ear, and the back of his neck,

requiring multiple surgeries. Both have permanent scarring.

Defendant was charged with four counts of first-degree

attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a); four counts of

second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); second-

degree burglary, N.J.S.A. 2C:18-2(a)(1); third-degree unlawful

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(d); second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(1) or

(2); two counts of third-degree endangering the welfare of a child,

N.J.S.A. 2C:24-4(a), 9:6-1, and 9:6-3; and fourth-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(d).

On July 23, 2013, defendant pled guilty before Judge Marilyn

C. Clark to four counts of second-degree aggravated assault.

Defendant initially claimed that he was defending himself against

attacks from the two men and that he did not intend to harm Y.R.

and her daughter. The prosecutor refused to accept defendant's

statements as a factual basis, and trial counsel requested a recess

to speak with defendant. After conversing with his counsel over

the lunch break, defendant testified he intended to and did inflict

serious bodily injury against all four victims. Pursuant to the

3 A-5057-14T1
plea agreement, all other charges were dropped and the State

recommended a total sentence of fifteen years in prison, which

comprised two concurrent eight-year terms to run consecutively

with two concurrent seven-year terms, with an 85% period of parole

ineligibility.

In an October 2, 2013 judgment of conviction, Judge Clark

sentenced defendant to the recommended sentence pursuant to the

plea agreement. We affirmed defendant's sentence on our excessive

sentencing calendar, but our order remanded for entry of an amended

judgment of conviction to reflect the correct amount of jail

credits. State v. Suruy, No. A-3249-13 (App. Div. July 1, 2014).

Defendant filed a pro se PCR petition on July 24, 2014, which

was later supplemented by PCR counsel's letter-brief and

defendant's certification of facts. On June 2, 2015, Judge Clark

issued an oral decision on the record denying defendant's PCR

petition without an evidentiary hearing.

Defendant timely filed a notice of appeal on July 16, 2015.

He raises the following argument:

POINT I – THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
H[E]ARING TO FULLY ADDRESS HIS CONTENTION THAT
HE WAS ENTITLED TO WITHDRAW HIS GUILTY PLEA
ON THE BASIS HE HAD FAILED TO RECEIVE ADEQUATE
LEGAL REPRESENTATION FROM TRIAL COUNSEL,
RESULTING IN A GUILTY PLEA WHICH HAD NOT BEEN
FREELY, KNOWINGLY AND VOLUNTARILY ENTERED.

4 A-5057-14T1
 II.

Defendant argues he was entitled to an evidentiary hearing

on his ineffective assistance of counsel claim. A PCR court need

not grant an evidentiary hearing unless "'a defendant has presented

a prima facie [case] in support of post-conviction relief.'" State

v. Marshall, 148 N.J. 89, 158 (alteration in original) (citation

omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.

2d 88 (1997). "To establish such a prima facie case, the defendant

must demonstrate a reasonable likelihood that his or her claim

will ultimately succeed on the merits." Ibid. The court must

view the facts "'in the light most favorable to defendant.'" Ibid.

(citation omitted); accord R. 3:22-10(b). As the PCR court did

not hold an evidentiary hearing, we "conduct a de novo review."

State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S.

1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We must hew to

our standard of review.

To show ineffective assistance of counsel, a defendant must

satisfy the two-pronged test of Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted in State

v. Fritz, 105 N.J. 42 (1987). "The defendant must demonstrate

first that counsel's performance was deficient, i.e., that

'counsel made errors so serious that counsel was not functioning

as the "counsel" guaranteed the defendant by the Sixth

5 A-5057-14T1
Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting

Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.

2d at 693). The defendant must overcome a "strong presumption

that counsel rendered reasonable professional assistance." Ibid.

Second, "a defendant must also establish that the

ineffectiveness of his attorney prejudiced his defense. 'The

defendant must show that there is a reasonable probability that,

but for counsel's unprofessional errors, the result of the

proceeding would have been different.'" Id. at 279-80 (quoting

Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed.

2d at 698). In the context of a guilty plea, the defendant must

show "'there is a reasonable probability that, but for counsel's

errors, [defendant] would not have pled guilty and would have

insisted on going to trial.'" State v. Nunez-Valdez, 200 N.J.

129, 139 (2009) (citation omitted); accord Hill v. Lockhart, 474

U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985).

The defendant must also show "a decision to reject the plea bargain

would have been rational under the circumstances." Padilla v.

Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d

284, 297 (2010); see State v. Maldon, 422 N.J. Super. 475, 486

(App. Div. 2011).

6 A-5057-14T1
 III.

In his certification, defendant claimed trial counsel was

ineffective because he did not use a Spanish interpreter during

their consultations. Defendant asserted that as a result, he and

trial counsel were "never on the same page." Defendant further

claims he told trial counsel "I wanted to go to trial on the

charges an[d] explain to the jury what truly happened." Defendant

claimed trial counsel "took full advantage of the language barrier

and viewed this as his opportunity to do the least amount of work

as possible."

Defendant's certification is contradicted by the record.

Defendant's testimony from the plea hearing reveals trial counsel

met with defendant many times. The PCR judge, who was the trial

judge, observed that trial counsel "did a great deal of work for

the defendant, including hiring the private investigator that

seems to have resulted in the plea [offer] going down [from twenty

years in prison] to 15 years." See State v. Martini, 160 N.J.

248, 266 (1999) ("[C]ounsel has a duty to make reasonable

investigations or to make a reasonable decision that makes

particular investigations unnecessary." (quoting Strickland,

supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695)).

We cannot say these are the actions of an attorney who, as

7 A-5057-14T1
defendant describes in his certification, "just wanted to rush

[his] case along."

Regarding the alleged language barrier, defendant testified

during the plea hearing that he is a permanent resident, has been

in the United States for twenty-two years, spoke some English, and

could read English. Defendant testified that he went through the

indictment and the plea forms' questions with trial counsel, that

he understood them and that he was satisfied with trial counsel's

representation. The PCR judge noted defendant occasionally spoke

in English in pretrial hearings and at sentencing. The judge was

"absolutely convinced that the defendant is very fluent in English

and communicated with [trial counsel] in English and had absolutely

no difficulty in doing so."

In any event, defendant failed to show prejudice. Defendant

had a Spanish interpreter at every court proceeding. The PCR

court noted there were many status conferences where "all of [the]

issues were discussed at length" with defendant present. The plea

forms were written in both English and Spanish. Defendant

testified he initialed each page and signed the forms to show he

understood them and that he gave truthful answers. Defendant also

testified that he understood he could go to trial, that he could

testify, that trial counsel would represent him at trial, and that

he was giving up those rights by pleading guilty. Defendant

8 A-5057-14T1
testified his guilty plea was free and voluntary, and that no one

forced, threatened, or coerced him to plead guilty. The trial

court was satisfied defendant was pleading guilty freely and

voluntarily.

"Generally, representations made by a defendant at plea

hearings concerning the voluntariness of the decision to plead,

as well as any findings made by the trial court when accepting the

plea, constitute a 'formidable barrier' which defendant must

overcome[.]" State v. Simon, 161 N.J. 416, 444 (1999) (quoting

Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52

L. Ed. 2d 136, 147 (1977)). "That is so because [defendant's]

'[s]olemn declarations in open court carry a strong presumption

of verity.'" Ibid. (quoting Blackledge, supra, 431 U.S. at 74,

97 S. Ct. at 1629, 52 L. Ed. 2d at 147).

Moreover, the PCR judge had heard defendant's statements and

observed his demeanor at both the plea and sentencing hearings.

The judge stated she "remember[ed] this plea fairly well because

it was such a serious case." "In some cases, the judge's

recollection of the events at issue may enable [her] summarily to

dismiss a [post-conviction] motion." Blackledge, supra, 431 U.S.

at 74 n.4, 97 S. Ct. at 1629 n.4, 52 L. Ed. 2d at 147 n.4. Further,

Judge Clark reviewed the transcripts and found defendant's

accusations were "clearly dispelled by the plea and sentencing

9 A-5057-14T1
transcripts." The judge's observations are persuasive. See Simon,

supra, 161 N.J. at 444-45 (rejecting a defendant's claim that his

plea had been coerced, on the bases of his statements and the

court's observations at the plea hearing); State v. DiFrisco, 137

N.J. 434, 452-54 (1994) (rejecting on the same bases a defendant's

claim that he did not "understand the nature and consequences of

his plea"), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L.

Ed. 2d 873 (1996).

Defendant certified that trial counsel "failed to realize

that Count 2 charging my aggravated assault against Y.R. and Count

4 charging aggravated assault against [her daughter] was not

applicable" because he did not "intend to cause any bodily

injuries, or harm" to them, and his "intent was only to hurt the

unknown males . . . after being attacked first." However, at the

plea colloquy defendant testified he intended to cause Y.R. and

her daughter life-threatening injuries. Defendant also testified

that when he said the young man was "trying to attack" him, he

meant the young man was trying to defend Y.R.'s daughter from his

machete attack, and defendant did not want him to take the machete.

Defendant admitted he "lash[ed] out with the machete" as soon as

he encountered Y.R. and her companion. Indeed, defendant's own

certification of "what truly happened" suggested he was the

instigator.

10 A-5057-14T1
 Defendant notes that at the plea colloquy, he initially

testified that "it was a fight and everybody got involved in the

fight," that "they got in the middle," and that "the person that

was with [Y.R.] got out and tried to attack me." However, the

trial court advised defendant: "Sir, nobody wants to put words in

your mouth, but if you want to plead guilty, you have to tell us

what happened." The court observed defendant "does not appear to

be answering questions" and "was not truly addressing the factual

basis." After defendant spoke with trial counsel, defendant

admitted his guilt in a thorough colloquy. The PCR judge who also

witnessed the plea colloquy could properly find defendant himself

had repudiated his prior attempts to blame the victims and deny

guilt. The judge did "not see any confusion" in the plea colloquy,

just "hesitancy to admit what he did."

Defendant certified trial counsel told him he "needed to

cooperate in order for the plea to be received," and defendant

only "cooperated" during the plea hearing because he was

"intimidated and very fearful that if [he] did not, the prosecutor

would give [him] more time." However, what trial counsel advised

defendant was accurate, as were defendant's fears: he faced four

first-degree attempted-murder charges each carrying a possible

twenty-year sentence, as well as six second-degree charges and

four other charges, under which he faced a total potential sentence

11 A-5057-14T1
far in excess of the fifteen-year sentence under the "very

favorable" plea offer defendant was jeopardizing by attempting to

avoid admitting guilt.

Finally, defendant asserted that trial counsel told him he

"had to plead guilty" and that he "felt pressured to do what my

attorney told me because I was scared." This assertion appeared

to reiterate trial counsel's advice and defendant's fears

discussed above. To the extent it alleged something else, it was

"too vague, conclusory, or speculative to warrant an evidentiary

hearing[.]" Marshall, supra, 148 N.J. at 158; see R. 3:22-

10(e)(2).

Thus, defendant failed to show "'there is a reasonable

probability'" he "'would not have pled guilty and would have

insisted on going to trial.'" Nunez-Valdez, supra, 200 N.J. at

139 (citation omitted). Moreover, defendant has not shown

rejecting the plea bargain would have been a "rational" decision

under his circumstances. Padilla, supra, 559 U.S. at 372, 130 S.

Ct. at 1485, 176 L. Ed. 2d at 297.

Defendant has not presented a prima facie case of ineffective

counsel in support of post-conviction relief. There is no

"reasonable likelihood that [defendant's] claim will ultimately

succeed on the merits." Marshall, supra, 148 N.J. at 158. Thus,

12 A-5057-14T1
the PCR court was not required to grant an evidentiary hearing and

properly exercised its discretion under R. 3:22-10.

Affirmed.

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